WONG CHI KEUNG v. ASIA MARBLE (BUILDING MATERIALS) CO. LTD. AND ANOTHER

DCEC1160/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1160 OF 2003

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D E C I S I O N

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1.  This is an application to adjourn the upcoming trial of the ECC proceedings until conclusion of Common Law proceedings which have only just been filed in the Court of First Instance.  The reason for the application appears to be as follows:

(1)   The applicant has, upon completion of the discovery process, come to the conclusion that they need to join the alleging party as the 3rd respondent in the ECC proceedings.  This is because the 2nd respondent has, in the process of discovery, produced a contract between the 2nd respondent and the alleging party, showing the alleging party to be the 2nd respondent’s subcontractor at the worksite.  This means that the alleging party could be the direct employer of the applicant.  Due to the expiration of the limitation period in respect of the employee’s compensation application since 26 February 2004, the applicant’s legal advisers came to the conclusion that they may not succeed in an application to join the alleging party in the ECC application. 

(2)   According to the applicant’s solicitor, the applicant does not have direct evidence to point to the fact that the alleging party was the direct employer of the applicant as at date of the accident. 

(3)   The applicant is fearful of losing his EC action against the 1st and 2nd respondents were the 1st respondent found not to be the applicant’s direct employer.

(4)   According to the applicant’s solicitor, the applicant would like to proceed with his case against the 1st and 2nd respondents and the alleging party in the Common Law proceedings so that the 1st respondent might be in a position to provide evidence related to the position of the alleging party vis-à-vis the applicant.

(5)   The applicant’s solicitor submits that were the 1st respondent found not to be the direct employer of the applicant in the ECC proceedings, the applicant would be estopped from proceeding against the 1st respondent and the 2nd respondent in the Common Law proceedings, and this would jeopardise the applicant’s chances of claiming damages against the direct employer of the applicant.  As the applicant does not have direct evidence related to his employment by the alleging party and without the 1st respondent being sued as a party in the Common Law proceedings, the applicant’s solicitor submits that he is not able to obtain evidence through the 1st respondent as regards the relationship between the alleging party and the applicant in the Common Law action.

2.  The basis for the application to adjourn the trial date should be under Order 35, Rule 3 as submitted by the 2nd respondent’s solicitor and not Order 23A, Rules 7 and 9 of the Rules of the District Court.  The considerations for deciding on an adjournment for trial are that stated in paragraph 35/3/1 of the Hong Kong Civil Procedure at page 573.  Before doing so, I shall first address and consider the applicant’s stated reasons for the adjournment.

3.  Firstly, the applicant’s solicitor was of the view that the evidence of who was the direct employer would best be elicited in an action where the 1st respondent, the alleging party and the 2nd respondent would be the opponents in the action as then the 1st respondent would be put in a position to disclose evidence related to the applicant’s relationship with the alleging party. 

4.  The applicant’s solicitor submitted that because of the time bar, an application to join the alleging party as a respondent in the ECC proceedings would be difficult.  He submitted that it is best to abandon the ECC proceedings and to focus on his Common Law action.  The applicant is afraid that should the 1st respondent be found in the ECC proceedings not to be the direct employer of the applicant, the action against the 1st respondent in the Common Law proceedings would be struck out.  He was of the view that this would bring adverse consequences to the applicant in the Common Law proceedings in that the applicant does not have direct evidence that the alleging party is the employer.

5.  However, the 1st respondent’s case all along in the ECC proceedings is that the applicant is the subcontractor of the alleging party and not the employee of the alleging party.  As the 1st respondent holds this position in the ECC action, the situation envisaged by the applicant’s solicitor that the 1st respondent might be in a position to disclose evidence that would be helpful to point to an employer-employee relationship between the alleging party and the applicant is not as easy as he anticipates or may not be as easy as he anticipates.

6.  The second consideration is the cause of action in the Common Law case is different from that in the ECC case.  In the ECC action, the main issue is the matter of the relationship between the applicant and the 1st respondent, whether it is that of employee-employer and whether the accident occurred in the course of and arising out of work, whereas the cause of action in the Common Law damages claim is quite different.  The applicant has to establish negligence or other fault on the part of the defendants.  It is not as simple as that in the employee’s compensation action.

7.  So apart from the issue of who is the employer of the plaintiff/applicant, the other issues are entirely different, and the success of a Common Law claim as regards the plaintiff’s case in his cause of action is uncertain.  On the other hand, the employee’s compensation case, the issues are simple and there is no need to establish fault. 

8.  Thirdly, there is no basis for drawing the conclusion that if the employee’s compensation action against the 1st respondent as employer failed, he could not file a claim against the alleging party unless the applicant is not able to show a positive case against the alleging party.  It may be that in the employee’s compensation case, evidence may come out in the trial which may throw light on the relationship between the 1st respondent and the alleging party.  If such evidence were favourable, this evidence could be used by the applicant/plaintiff in the Common Law proceedings. 

9.  Hence, the reasons for the adjournment advanced by the applicant’s solicitor are not clear-cut and are rather ambivalent.  I have to consider the factors listed in paragraph 35/3/1 of the Hong Kong Civil Procedure 2004 when coming to my decision in relation to this application:

(1)   The importance of the proceedings and their likely adverse consequences to the party seeking the adjournment.  The employee’s compensation action should be important to the applicant.  In this application, the applicant’s solicitor is seeking to adjourn these proceedings rather than proceed with it.  This is a rather unusual step.  According to the applicant’s solicitor, the benefits which have been advanced by the applicant’s solicitor, in my view, are by no means certain.

(2)    The risk of the party prejudiced in the conduct of the proceedings if the application were refused.  Were this application refused, then the risk to the applicant as submitted by the applicant’s solicitor relates to risks in proceeding in the Common Law proceedings and risks in losing in the employee’s compensation and its effect in the Common Law proceedings.  It is difficult to assess and to balance such risks.  Even were the applicant to adjourn the EC action, it may not mean that his chances of succeeding in the Common Law proceedings is much improved.

(3)    The risk of prejudice or other disadvantages to the other party if the application were refused.  The prejudice is that these employee’s compensation proceedings could be left hanging in the air, and the 1st and 2nd respondents could not immediately have their costs issue resolved.  Also, the 1st respondent and 2nd respondent have expended legal fees and, naturally, they would like the action to be finalised, having brought the action so close to trial.  As far as the 1st and 2nd respondents are concerned, they state that they would be prejudiced or disadvantaged by an adjournment.  The convenience of the court, the time allocated for the trial date may not easily be used for another trial at such short notice.  There would be an adverse effect on the court diary.

(5)   The interest of justice generally in the efficient dispatch of court business.  The employee’s compensation action left hanging in suspension is not an efficient dispatch of court business.  It is not good to suspend proceedings without a decision.

(6)      It would delay future litigants by adjourning and leaving the trial dates without other cases being put in its place.  This is not a good situation for the court diary and would cause delay to future litigants.

(7)      The extent to which the party applying for the adjournment had been responsible for creating the difficulty which had led to the application.  The applicant was in a difficult situation in that his own case and his evidence supported his claim that the 1st respondent was his employer.  He had no direct evidence related to employment by the alleging party.  The only piece of evidence which suggests that the alleging party may be either the applicant’s employer or subcontractor is the contract between the 2nd respondent and the alleging party.  Hence, it was not easy for the applicant to come to a quick decision as to whether to join the alleging party.  However, I believe that the contract between the 2nd respondent and the alleging party had been discovered in October 2004.  The decision related to the weight of this evidence and whether the alleging party should have been joined should have been made much earlier.

10.  Having considered all of the aforesaid, I come to the conclusion that weighing all these factors, it is not satisfactory to leave the employee’s compensation action hanging in the balance.  I find therefore that this application for adjournment until the conclusion of the Common Law proceedings between the applicant and other parties should be refused.